So what does this mean? For example, is it - as posters on some websites have been suggesting - now an offence to use a sex aid in a Scottish hotel room? (Thanks to one correspondent for the disturbing image of an Ann Summers-Halfords collaboration.)
Well, the Scottish offence of breach of the peace requires "conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community... conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person" (Smith v Donnelly 2002 JC 65, para 17). So, two thoughts:
- For someone to commit breach of the peace in a "private" place, it must be shown that they were likely to be discovered (see, e.g., Thompson v Macphail 1989 SLT 637). Here, that seems to have been established by Mr Stewart's failure to respond when the cleaners knocked on the door several times. (Exactly what he should have said to them to indicate that they would be better off not entering is another question.)
- Even if the likelihood of discovery is established, the conduct must still be shown to be sufficiently alarming. Most solo or consensual sexual activities probably fall far short of that standard, at least where the accused is trying to keep their actions private. And it's not even clear that sex with a bicycle in a hostel room meets it either. Confusing, yes. Alarming, maybe. But does it "threaten serious disturbance to the community"? How likely is that?
2 comments:
Fascinating and entertaining blogging. Such an activity being described as breach of the peace is indeed worrying. If we can't have sex with our bikes who will?
Whether an instance of (discovered) solo sexual activity is a breach of the peace is far from predictable – which does seem unfair. Would this case have been decided in the same way had he simply been masturbating in the room (sans vélo)? Would this not be more likely to cause simple embarrassment (on the part of Mr Stewart, the cleaning staff and, it is submitted, the “ordinary” person) – which is surely not enough to meet the “Smith test” (Borwick v Urquhart 2003 SCCR 243)? If this holds, why does the (mis)use of a bicycle justify conviction? As others have suggested, this decision could be pushed to any “sex aid” used in furtherance of solo sexual activity – but what exactly is “a sex aid”? Although it may be intriguing to hear the court’s definition of this term, this is an altogether uncertain and unsatisfactory state in which to leave the law. It is, in this regard, representative of the wide range of conduct we term “breach of the peace”.
As for placing the accused on the Sex Offenders’ Register: is this sufficient? Are the bicycles of Scotland now safe – or should the prosecutor have pushed for an RSHO? Furthermore, regarding consensual sexual activity: did anyone establish whether or not the bike was indeed consenting? Was the bike called to give evidence? I assume the major factor is whether the bike had a bell: "1 ring for yes, 2 for no"?
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